Family Provision Litigation

While will-makers are able to dispose of their propose as they see fit, this right is subject to the court being able to ‘rewrite a will’ to order provision out of the estate for an eligible person where the court determines that further or better provision for the maintenance, education or advancement in life of that eligible person.  In NSW, eligible persons include:
  • the deceased’s spouse (including de facto spouse and former spouse),
  • the deceased’s children
  • any person who was wholly or partly dependent on the deceased person and:
    • who was the grandchild or
    • a member of a household with the deceased
  • a person living in a close personal relationship with the deceased at the time of the deceased’s death.
In considering a family provision claim, the court has considerable discretion to take into account all factors which it may consider relevant, including:
  • the needs of the person requesting provision such as requiring funds for accommodation, health care, a car, topping up superannuation or paying off debts or mortgage
  • the competing needs of the beneficiaries of the estate under the deceased’s will or those entitled under state intestacy legislation where the deceased had no will
  • the relationship between the claimant and the deceased
  • the relationship between the deceased and the beneficiaries of the deceased’s estate
  • any estrangement between the claimant and the deceased
  • the conduct of the claimant, the deceased and competing beneficiaries
  • the size and nature of the estate
  • any contribution made by the claimant to the deceased’s estate, to the deceased’s well-being or life style
In NSW, if the deceased gave away or transferred assets out of the deceased’s name or control within several years before the deceased’s death then in some circumstances those gifted or transferred assets may be made available to make provision for a family provision claimant if the assets in the estate are insufficient for provision to be made.
We are experienced in the negotiation, mediation, and settlement of family provision claims, preparation of deeds of family arrangement, preparation of deeds settling family provision claims, and applications for approval of the release of the right to apply for family provision.